There may be many reasons why you have decided to resign from your employment. You might simply have found a new job and/or have decided to leave to further your career. You may be retiring and looking forward to the next stage in your life. Alternatively, you might be leaving because of something your employer has done, and you are contemplating an Employment Tribunal claim. Whatever your reason for leaving your employment, take some to think about what to put in your resignation letter.
Amicable Resignation/Leaving For A New Position Or Retirement
If you are leaving for a new position or retirement, and there is no issue or conflict with your current employer; your resignation simply needs to make sure you comply with your obligations and can leave on amicable terms.
The first step is to check your employment contract/terms and conditions to make sure you understand your notice obligations, i.e. how much notice you have to give before you leave. Not giving sufficient notice could put you in breach of contract and, therefore, liable to action by your employer if they suffer losses because of your inadequate notice.
If you do want to leave earlier than your employment contract/terms and conditions allows, you will need to negotiate with your employer with a view to agreeing to vary the notice provisions.
Also, the employment contract/terms and conditions should set out your employer’s options upon receiving your resignation. You need to be aware if they can put you on garden leave and/or terminate your employment early with a payment in lieu of your notice.
Also, check your employment contract/terms and conditions for any obligations which will continue after you have left your employment. There may well be restrictions on where you can work and who you can work for, provisions for confidentiality, requirements about returning your employers property etc. These are provisions you will have already agreed to and accepted during your employment. It is important to remind yourself of your obligations, so you don’t find yourself in breach of contract in the future.
Your resignation should explain why you are leaving and set out when you expect your last day of employment will be. You should ask for information about any accrued but outstanding holiday (it is likely your employer will ask you to take your holiday during your notice period). You should then co-operate with any exit procedures your employer may have.
Employer Dispute Resignation/Anticipating A Constructive Dismissal Claim
If you are resigning because of something your employer has done/not done, you may be considering a future claim of constructive dismissal at the Employment Tribunal. In claims of constructive dismissal, one of the most crucial pieces of evidence is the employee’s resignation.
The clients who contact us about constructive dismissal have a wide number of complaints about their employer. They may feel forced to resign for bullying at work, pay problems, unfair performance management, unfair work allocations etc. Therefore, whilst they all want to claim constructive dismissal, their reasons for resigning are all very different.
I explain to all clients considering this course of action that constructive dismissal claims are very difficult to pursue and, if they are considering resigning in anticipation of such a claim at the Employment Tribunal, there are some points they need to remember:-
1 – Length of Service
Like ordinary unfair dismissal, you will usually have to have worked for your employer for two years before you can bring a claim of constructive dismissal at the Employment Tribunal. If you do not have two years’ service, there are some exceptions to the two-year rule and other types of claim (for example discrimination) which do not require any minimum period of employment before you can pursue a claim. However, this is something you need to consider before submitting your resignation in anticipation of a constructive dismissal claim.
2 – The Must Be A Breach Of Contract
Constructive dismissal is where you submit your resignation or leave your employment in response to a serious breach of your contract of employment by your employer. It is important, therefore, to identify what the contractual term is that has been breached.
Sometimes this is obvious, for example, salary and pay obligations. An express term in your contract about what you should be paid and when is easy to identify. Also, it is easy to evidence and identify when that term has been broken.
If you do not have a contract and/or you are having to rely on implied obligations, then identifying the contractual term and then assessing whether there is a breach becomes more difficult. For example, where clients state they have suffered bullying by their employer, they often suggest the relevant term in their contract is an implied term of “trust and confidence”. However, it can sometimes be difficult to clarify what the employer and employee understand by mutual trust and confidence as an implied term in the contract of employment. This then causes problems in assessing whether that term has been breached.
Sometimes our clients say the want to resign and bring a claim for constructive dismissal because their employer has started disciplinary, performance management or some other type of internal procedure. Where the employer has a procedure, especially if it is referred to in the employment contract/terms and conditions, then any action they take is likely to be permitted by the contract. As such, it will not be a breach. The situation may change if there is an extra element in the decision to start a procedure. For example, discrimination or retaliation for an employee being a whistleblower.
3 – Repudiatory Breach of Contract
Once you have identified:
- the relevant contractual term (express or implied); and then,
- that there has been a breach of that term;
the next consideration is the seriousness of the breach. Your employer’s conduct must be so serious as to be a “repudiatory breach” of your employment contract.
You need to be clear why you consider the breach is so serious as to be a repudiatory breach of your contract of employment. It may be that it is a single event, such as refusing to pay you or withdrawing benefits. It could be a culmination of a number of events and incidents, such as a manager making derogatory comments, with a “last straw”.
For example, if your employer had a payroll issue and your salary arrived a day late with explanations and apologies, this would likely be a breach of your contract. However, one isolated incident would be unlikely to be considered serious enough to be a repudiatory breach for the purposes of a constructive dismissal claim. However, if late payments happened repeatedly, causing you distress and financial difficulty, then this may well be a repudiatory breach with a last straw being the final time when you decided to take action.
4 – Resignation In Response
Having identified:
- the relevant contractual term (express or implied); and then,
- that there has been a breach of that term; and then,
- that the breach is so serious as to be a repudiatory breach (single incident or many incidents with a last straw);
your resignation will need to be in response to that breach of contract by your employer. An employee is expected to act promptly from the serious single event or incident or the last straw. Any delay can weaken a future claim. If you continue working without protest, the Employment Tribunal may consider that you have “affirmed” the contract. Effectively meaning you have agreed the employer’s breach. That being noted, a short period to seek legal advice or attempt to resolve the situation internally using your employer’s procedures is usually acceptable.
Indeed, for the vast majority of employee complaints, the Employment Tribunal will expect you to use any internal Grievance or Complaint policy your employer has. If the employer has no such policy, they will be expected to abide by the ACAS Code of Practice on Disciplinary and Grievance Procedures in any event. That being said, you should not allow the situation to go on too long as, again, the Employment Tribunal may consider that you have “affirmed” the contract. More information about what to put in a formal complaint or grievance is available on our website at https://lincslaw.co.uk/blog/how-do-i-raise-a-complaint-or-grievance-at-work/
5 – Resignation With or Without Notice
The idea of constructive dismissal and a fundamental breach of contract is, of course, that your employer’s behaviour has meant you cannot continue in their employment. This is a difficult concept for an employee to reconcile if they decide to work their notice period. Certainly, this could complicate a claim of constructive dismissal. The Employment Tribunal may question whether the resignation was truly in response to a fundamental breach, as working notice can imply agreement to the contract’s continuation.
However, there are exceptions:
- Practical Necessity: It may be you have to work your notice period out of financial necessity or to comply with statutory obligations.
- Mitigation of Loss: You could suggest working your notice is an attempt to mitigate financial losses caused by your employer’s breach of contract.
- Clear Evidence of Breach: If the fundamental breach by your employer is well-evidenced and severe, the act of working notice may not undermine the claim.
You will need to make clear in your resignation letter that you are leaving due to your employer’s breach of your contract of employment and that any continuation to work (e.g., during the notice period) should not be considered as you affirming the contract.
What Should You Include In Your Resignation?
Further to the above, if you are contemplating a future constructive dismissal claim, you must ensure your employer knows that you are resigning in response to their breach of your contract of employment. Make your resignation letter as full and as detailed as possible. You need to:-
- Provide a brief background of your issue;
- Identify the term of your employment contract you say has been breached;
- Explain why you believe your employers have breached that term of your employment contract. If in your situation you have a last straw, explain what that is;
- Explain the impact upon you of your employer’s breach and why you say it was a repudiatory breach (have you lost money, has your health been affected etc);
- Set out your attempts to resolve the dispute (internal grievances etc) and explain why you are unhappy about the outcome;
- Explain you are submitting your resignation because of your employer’s breach of your contract; and,
- If you are working a notice period explain why and that your notice should not be considered as you affirming the contract.
Lincs Law Employment Solicitors Can Help You
Although we hope information and guidance on our website is helpful, it is no substitute for legal advice about your specific situation. Constructive dismissal claims are notoriously difficult to pursue with the employee taking all the risk. Therefore, if you are having difficulties with your employer and are thinking of resigning, call us for a free, no obligation, telephone consultation with an Employment Solicitor on 01522 440512 or book in for a free enquiry call above.
Alternatively, for more information about the Employment Tribunal and how to make a claim, please visit our website at https://lincslaw.co.uk/services/employees/employment-tribunal-claims/
Sally Hubbard
Specialist Employment Law Solicitor
Lincs Law Employment Solicitors, Lincoln
Tags: constructive dismissal constructive dismissal at the employment tribunal constructive dismissal claim constructive dismissal resignation letter Lincs Law resignation resignation letter sally hubbard
